Posted workers: time to stop talking nonsense

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The Posted Workers Directive is one of the most blamed and misunderstood EU rules, accused of being responsible of unemployment, misery and social dumping. The misunderstandings and disinformation about this directive are numerous and are a godsend for its detractors, who feed (by lack of understanding or bad faith) its unpopularity.

This article aims at deconstructing the hoaxes spread by the opponents of this directive, who wish to see it disappear. As an example, our French author quotes the falsehoods that were delivered by some French politicians on the subject, but the Posted Workers Directive triggered political reactions (and, regularly, misunderstandings and untruth) in many other member states, as recently in Hungary and Poland. Notorious Europhobics like Nigel Farage have also used this directive to trigger wariness and anger against posted workers.

A directive that all Europhobes love hating

In France, the debate around posted workers notably came back last year, when some local authorities decided to adopt the “Molière” clause, which decrees the use of French language on construction sites.

A French editorialist had especially published a column against the Posted Workers Directive, that he actually confused with the Bolkestein Directive. According to him, the Molière clause would be justified by the necessity to limit the number of posted workers. He thus confessed that this measure is purely and solely discriminatory towards this category of workers, and this was not denied by some local elected representatives who decided to apply the clause. The deputy mayor of Angoulême claimed that he would like the posting of workers to disappear. The President of the Region Ile-de-France also implemented this clause, illegal in light of European law, and attempted to explain this with the concern that workers need to understand safety instructions. Well, let’s concede that French is the only language to have an entire lexical field dedicated to safety on construction sites… The President of the Region Rhône-Alpes, who also implemented the Molière clause in his local authority, simply contented himself with fustigating Brussels absurdities.

Not only local elected representatives but also former candidates to the French presidency displayed their will to put an end to the Posted Workers Directive during their respective electoral campaigns.

Arnaud Montebourg, one of the socialist candidates, declared that, “to end its torrent of stupid and blind rules”, he would repeal the “scandalous Posted Workers Directive that organises social dumping inside Europe”. Nicolas Dupont-Aignan, President of a conservative and openly Europhobic right-wing party, condemned the directive that would legalise “low-cost work and unfair competition from Eastern and Southern countries”. Following the same line, Marine Le Pen proposed to establish “an additional tax on the hiring of foreign employees, in order to effectively assure a national priority and the employment of French nationals”. Jean-Luc Mélenchon wholeheartedly accused posted workers of “stealing the bread of the local employee”, expressing a xenophobia that has little reason to envy that of the extreme-right. One of his supporters, the economist and former MEP Liem Hoang Ngoc, drew a link between posted workers and unemployment: “at least, firms would hire French nationals instead of posted workers; we have six million unemployed persons”. [1]

Speech based on a primary and biased anti-European fantasy

Whether their opponents like it or not, the Bolkestein Directive (or the EU’s Services Directive) and the Posted Workers Directive have nothing to do with each other. The first one, at the root of the controversial “Polish plumber”, regulates the freedom to provide services (for example, the freedom of a Dutch doctor to practice in Ireland, or the one of an Italian architect to settle in France). The second one sets the rule for the sending of an employee by their employer in another member state for a period that cannot exceed two years. It came into force in 1996, with the aim of fighting the social dumping of workers coming from Iberian countries. As such, the applicable labour law is the one of the host country, especially concerning the maximum working time, the rest periods, the duration of the annual pay leave, and the minimum wage. Contrary to a sadly widespread stereotype, a Regulation of 2004 on the coordination of social security systems is the one that attaches the posted workers to the social security scheme of their home country. Abolishing the Posted Workers Directive or suspending its application thus wouldn’t solve any problem, as the Regulation of 2004 would remain untouched. Even worse, the employers would be free to apply to their posted workers the labour law of their countries of origin, which would cause an increase in social dumping.

Especially as posted workers mostly come from Poland, Portugal, Romania and Spain, and the Spanish and Portuguese social systems are far from being nonexistent. Knowing this, it is hard to see how the posting of workers coming from these member states could harm our “social model” and cause dumping.

The argument stating that the attachment of a social benefits charge in the workers’ home country would cause unfair competition isn’t convincing either. 83% of posted workers in France are labourers, and most of them are paid with the minimum wage. But in France, the social benefits charges on low wages are very light. And the employers are obliged to pay for the transport and accommodation of their posted workers. A French MP, general rapporteur for the budget, had thus observed that a French worker who got paid the minimum wage cost less than a posted worker.

The persisting idea according to which posted workers would steal the work of local workers is also refuted by facts: in France, the average period of posting lasts 47 days. We can thus hardly denounce the posting of workers as responsible of the country’s unemployment, especially as it concerns 1% of the working population in France. On the contrary, the posting of workers allows sectors like the construction industry, seasonal agriculture or social care to face up to the lack of staff they are encountering.

Moreover, if the directive contributed to growth in the number of unemployed workers by allowing companies to replace the local workforce with a foreign and low-cost workforce, how to explain that Germany, together with France and Belgium, is the first host country for posted workers? The country’s rate of unemployment is indeed very low and, until 2015, it had no minimum wage.

Finally, if France is one of the main recipient countries of posted workers, it is also the third-biggest issuing county, after Germany and Poland. We can easily imagine what the reaction of French authorities would be if the host countries of French posted workers forced them to learn the local language.

Which criticisms are justified?

Although the arguments of the supporters of the abolition of the Posted Workers Directive are based on stereotypes, all criticisms are not unjustified.

Numerous frauds and circumventions of rules are to blame: establishment of dummy companies in Eastern Europe only to carry out posting of workers, non-respect of the maximum working time, deplorable accommodation, draining of a part of the workers’ salary to make them pay an exorbitant rent… Abuses are particularly important in the transport sector, in which some companies are juggling with the different national legislations.

However, labour inspectors complain about the lack of staff. Moreover, it remains difficult for posted workers to enquire about their rights in the host country. We can add to this another problem: even if a French worker on the minimum wage costs less than a posted worker in France earning the same salary, posted workers actually often provide services that French workers would perform for higher salaries. This explained the will to revise the directive for it to include the “equal pay for equal work” rule.

Unfortunately, instead of trying to bring solutions to solve these problems, the most radical detractors of the posting of workers spread clichés that twist the debates from the real issues. Even worse, they blame the victims of the directive’s flaws: posted workers themselves.

About the author

Author and Chief Translator FR / EN for ’The New Federalist’. Policy Officer for a think tank in Brussels, and previously Research Assistant for the NGO European Citizen Action Service (Brussels). Graduated with a Master’s degree in Political and Governance Studies (College of Europe, Bruges).

Alexandre studied French, Spanish and European law at Complutense University of Madrid and at Pantheon-Sorbonne University of Paris.

Footnotes

[1] These declarations were originally quoted in French in an article of Libération titled “Everyone wants the Posted Workers Directive to die”, written by the journalist Cédric Mathiot, in charge of the newspaper’s columns tackling fake news (LibéDésintox and CheckNews)

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